Child Relocation

child relocation ordersWhat is a Child Relocation Order?

A Relocation Order is an order from the Family Court permitting one parent to change a child’s residence intra or inter state or overseas. Where both parents agree the Relocation Order may be obtained by consent without the need for litigation, which can be costly in emotional and financial terms.

Can a Child relocation order be made by consent?

Where both parents disagree about relocation then the matter is litigated at the Family Court. In our experience every effort should be made to mediate an agreement. In our experience parents can sometimes adopt a black and white approach too early in the process.

Very often (and particularly where intra or inter state relocation is proposed) agreement on generous contact arrangements (visits in WA and interstate and overseas, holiday visits, Skype and telephone contact (and agreement on who pays for such visits) for the parent who remains behind can result in an agreement.

The agreement may not be ideal- but it in many cases parents agree an arrangement that both can live with. Mediation also allows the parents to have ownership of the decision. If the matter is litigated both parents lose ownership of the decision. It’s worth bearing in mind that no lawyer can predict a court outcome with certainty.

Where litigation is the only option.

Sadly, in some case litigation is that only way to resolve the issue. In such cases, unless there is clear urgency, you can expect to wait 6 to 18 month for the matter to be determined.

The Law in relocation cases

Since the introduction of the Family Law Amendment (Shared Parental Responsibility) Act 2006 there have been significant changes to the determination of children’s issues. The Full Court of The Family Court in Taylor and Barker [2007] FamCA 1246 summarised the general approach to be taken in a relocation cases as follows:

  • Consider and evaluate the factors identified in how a court determines what is in a child’s best interests (s 60CC).
  • Consider whether it is in the child’s best interests to spend equal or substantial and significant time with each parent (s 65DAA) without regard to the relocation proposal.
  • Evaluate the proposals of the parties. Any relocation proposal will have to be balanced against the option of “equal” or “substantial and significant” time, if either has been found to be in the child’s best interest, and will include a consideration of whether the proposal is “reasonably practicable”, if relocation is permitted.

Western Australian statistics on decided relocation cases

We detail below some statistics periodically released by the Family Court of Western Australia on location cases. We stress that each case must be considered on its own merits and these statistics show general trends only.

June 2013 to June 2014

Cases determined by a Judge

InterstateIntrastateInternational
NUMBER OF DECISIONS345
PERMITTED214
PERCENTAGE66.6%25%80%

Cases determined by a Magistrate

InterstateIntrastateInternational
NUMBER OF DECISIONS540 decision’s
PERMITTED31NA
PERCENTAGE60%25%NA

 

July 2014 to March 2015

Cases determined by a Judge

InterstateIntrastateInternational
NUMBER OF DECISIONS534
PERMITTED442
PERCENTAGE80%75%50%

Cases determined by a Magistrate

InterstateIntrastateInternational
NUMBER OF DECISIONS332
PERMITTED231
PERCENTAGE66.6%100%50%

There are many factors involved in whether a relocation case is heard by a Magistrate or a Judge. In very general terms the length of a trial and whether the proposed relocation is international or inter-state are key factors. Long trials and international relocations are generally (though not necessarily always) heard by a Judge.

Most common reasons for seeking to relocate (not necessarily the reason the application succeeds)

  • Financially advantageous
  • Professionally advantageous;
  • Academically advantageous;
  • Family support;
  • Spouse employment;
  • Spouse location;
  • “Homesick”.

Legal advice

Kavanagh Lawyers have a wealth of experience in relocation cases. Please contact us if we can be of assistance on (08) 9218 8422.